ACLU Seeks Preliminary Block on Wis. Gay Marriage Ban

Civil rights advocates have asked a federal judge to block Wisconsin’s gay marriage ban while their lawsuit challenging the prohibition winds its way through court, arguing same-sex couples could suffer harm if the ban remains in place.

The American Civil Liberties Union filed a motion Thursday with U.S. District Judge Barbara Crabb seeking a preliminary injunction that would essentially nullify the ban until a final decision comes down. ACLU attorneys argued in a brief supporting the motion they deserve a preliminary injunction because keeping the ban in place impairs gay couples’ legal rights and exposes gay Wisconsin couples who married in other states to potential prosecution.

"As a result of this marriage ban, two people who love each other and wish to commit to each other and build a life and family together are prohibited from marrying in Wisconsin and denied recognition of their existing marriage entered legally under the laws of another jurisdiction ... if they are of the same sex," the brief said.

The state Department of Justice, which is controlled by Republican Attorney General J.B. Van Hollen, is defending the ban. A spokeswoman said Friday the agency would respond in court. Crabb has set a hearing on the motion for March 27.

Wisconsin voters amended the state constitution in 2006 to outlaw gay marriage or anything substantially similar. The state has offered a domestic partner registry that affords gay couples a host of legal rights since 2009 but its future is in doubt; the conservative-leaning state Supreme Court is currently weighing whether it violates the constitution.

Encouraged by a U.S. Supreme Court ruling in June that found same-sex couples were entitled to federal benefits and a federal judge’s December decision to overturn conservative Utah’s gay marriage ban, the ACLU filed its Wisconsin lawsuit on Feb. 3 on behalf of a group of same-sex couples.

The lawsuit alleges the ban violates the U.S. Constitution’s Equal Protection and due process, asserting the prohibition deprives gay couples of legal protections married couples enjoy simply because of their sex. It also points out that gay couples who reside in Wisconsin can’t get married in another state and return to Wisconsin legally; a provision in state law declares that anyone who marries in another state to circumvent Wisconsin law can face up to $10,000 in fines and jail time. ACLU attorneys said they don’t know of anyone who has actually been prosecuted under those statutes, however.

The lawsuit seeks a permanent injunction that would essentially strike the ban down. The ACLU has filed similar lawsuits in Pennsylvania, Virginia, North Carolina, Ohio and Oregon.

The ACLU’s brief Thursday argues the organization is entitled to a preliminary injunction because it will probably win the case on the merits and the ban is causing irreparable harm to its clients.

One gay couple is expecting a child in April and under Wisconsin law one of them won’t be recognized as the child’s parent, the brief said. Another couple is suffering because only one of them is recognized as the legal guardian of their adopted children. Other couples are worried they can’t make medical decisions for each other. A couple that married in California but moved to Wisconsin found their union doesn’t legally exist in this state. And two couples, including the one expecting a child in April, are worried they could be subject to prosecution because they got married in Minnesota.

"The State of Wisconsin," the brief said, "inflicts these harms for no other reason than these couples’ sexual orientation."

Crabb gave the Justice Department until March 21 to file any opposing arguments.

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Gov. Scott Walker, a staunch defender of Wisconsin’s gay marriage ban, said Wednesday that he senses no "significant movement" to undo the law even though a federal lawsuit filed Monday challenges its constitutionality.

Democratic state Rep. Jon Richards pledged Wednesday to be "the people’s attorney general," and said if elected he wouldn’t defend at least two Wisconsin laws that he believes violate the U.S. Constitution or go against the wishes of the people.